I
Why and when do marriages which can be identified as 'forced' occur? To
what extent is legislation designed to classify such practices as a criminal
offence likely to resolve the underlying issues?
An anthropologically informed response to the Forced Marriage Consultation
document issued by the Home Office in December 2011
Has the target of the proposed legislation been adequately identified?
As anthropologists with long-standing interests in the internal dynamics of South Asian
families, as well as in the intensely destructive consequences which occasionally erupt as a
result of contradictions within them occasionally getting out of hand, we can only welcome
the prospect of the makers of social policy taking a positive interest in developments of this
hitherto neglected sphere of social policy. However we have prepared this response as a
result of our severe reservations about the quality of the arguments set out in the consultation
document, above all because its conceptualisation of the wrongs which it seeks to set aright
by legislative means appears to be driven much more by ill-informed moral outrage than on
the basis of careful empirical examination of the dynamics of the underlying issues,
accompanied by an equally careful contextualised examination of the basis on which the
contradictions which brings such matters to a head might best be resolved.
Hence the proposed heavyweight intervention is in our view severely premature. The essence
of our argument is that it would be foolish, and indeed reckless, to introduce legislation to
criminalise an activity whose parameters cannot at this stage be defined with any clarity, and
where the likely consequences of efforts to impose criminal sanctions on well-meaning
perpetrators (at least in their own terms) appear to have been entirely overlooked.
An overview of the underlying social, cultural and familial issues
Dilemmas
Just how much of a role should parents play in planning, overseeing and implementing the
marriages of their offspring? How much cognizance should young people be expected to pay
to their parents' wishes, opinions and priorities when it comes to choosing their conjugal
partners? If and when contradictions cannot be amicably resolved by means of informal
processes of dispute settlement such a family meetings, how far and in what circumstances
should agencies such as Social Services Departments and the Police and the Judiciary to
resolve the underlying contradictions? And if and when they decide to do so, just how should
they seek to resolve them? How far should they take cognisance of the distinctive cultural
premises deployed within the family in question? Or would the interests of the complainant
better be served by over-riding such 'traditional' premises in favour of the more 'progressive'
premises routinely deployed by members of the indigenous majority?
Given that none of these questions admit easy answers, the root source of these dilemmas is
worth articulating right at the outset.
2
That the problems which arise when a marriage has been arranged and implemented on a
disastrously myopic basis (a 'forced marriage' in other words) is self-evidently a legitimate
cause for public concern, not least because the protection of its vulnerable citizens from
exploitation and physical violence is one of the prime responsibilities of the state and its
welfare agencies. However the issue of 'forced marriages' makes itself felt in exceptional
circumstances: whist the 'beneficiary' of the procedure may be well be a stranger, at least as
far as the bride is concerned, its perpetrators are none other than her own immediate kinsfolk.
In other words no matter what labels we chose to apply to this state of affairs, it is of
necessity the product of comprehensive breakdown in interpersonal relationships of mutual
trust between close kinsfolk, and which is of such severity that is likely to blow the entire
extended family apart in the absence of a suitable process of renegotiation and reconciliation.
In such circumstances clumsy interventions can all too easily do more harm than good.
Current remedies
Our experience suggests that a spouse who has found herself (sometimes himself) shoehorned into a myopically arranged marriage normally has two pressing complaints. Firstly
that their civil status has been altered against their will; and secondly that they have been
provided with a conjugal partner whose company they detest. But at least in principle those
pressed into a corner in this way have a ready exit route. They can immediately lodge an
application for a declaration that their marriage was null and void, on the grounds that s/he
was subject to duress during the course of its solemnisation. Moreover if the relationship has
become violent, the Offences against the Person Act provides plentiful opportunities for the
distressed wives to precipitate legal action against unwillingly acquired husbands.
However the proposed criminal legislation, no less than its civil predecessor, is not concerned
with providing disillusioned spouses with an enhanced capacity to disentangle herself from,
an unwelcome and inappropriate partner; rather it seeks to provide disillusioned brides,
and/or those acting on their behalf, with an opportunity to take legal action of the perpetrators
of the marriage, typically the bride's parents, and in all probability other members of her
extended family. From that perspective the proposed legislation seeks to reinforce the
existing civil provisions for the issue of restraining order (which only gives rise to a sanction
if the order is breached), by formally identifying Forced Marriage as a criminal offence.
Before proceeding further it is worth noting that there is a sharp distinction between
consequences of the issue of a restraint order, by whomsoever the order is sought, and the
opening of formal criminal proceedings. Whilst parents can relatively easily respond to the
imposition of the former, always provided that they are prepared to abandon the particular
arrangement which they had in mind in favour of a spouse which their son or daughter would
find more acceptable, and in doing so provide the complainant with a bargaining tool with
precisely that end in mind, the implementation of criminal prosecution would by definition
have far more serious consequences.
But just what might those consequences be? A careful reading of the consultation
questionnaire suggests that Home Office takes the view that one of the most immediate
consequence of criminalisation would be to change popular attitudes to Forced Marriages in
the communities within which such problems occur, and thus reduce the scale of 'the
3
problem'. We are exceedingly doubtful as to whether criminalisation will have any such
consequence. What we are acutely aware of, however, is that if and when such legislation
begins to precipitate active prosecutions, as can only be expected to occur, the consequences
are likely to be disastrous. It is easy to see why. Such a prosecution could only be launched
post hoc, and almost certainly as a result of a marriage solemnised overseas, but organised by
UK-based parents - the classic context in which young people are most likely to find
themselves thrust into myopically arranged marriages by their parents. But as and when such
incidents occur, as we readily acknowledge that they sometimes do, it is most unlikely that
the criminal prosecution of their ill-advised parents would bring any kind of relief to unhappy
brides as and when they managed to make their way back to the UK. Far from providing a
vehicle for the prospect of promoting familial reconciliation, and hence a new modus vivendi
which would be mutually acceptable on all sides, the initiative would be much more likely to
split the family asunder, leaving the unhappy ex-spouse in a vulnerable condition of
kinlessness. Given the intense commitment to the maintenance of familial reciprocities in
South Asian contexts, all our experience suggests that very few young Asian women would
consider such a devastating outcome as being in any way in their best interests, even if they
eventually found that they ultimately had no option but to take it up as a last resort.
The significance of the cultural context
Remarkably enough, the consultation paper pays remarkably little attention to the institution
of the family, or to the widely varying cultural premises which underpin its construction.
With is in mind it is worth noting that kinship, marriage and hence the process of familyconstruction is a universal human phenomenon, the premises and conventions which give rise
to family life are always and everywhere culturally conditioned. Some traditions - of which
current Euro-American expectations are a clear example - place a great deal of emphasis on
personal autonomy, such that once young people reach the age of majority they are regarded
as having a right to organise their personal lives in whatever way they choose, regardless of
their parents' priorities. In others - most markedly in South Asian contexts - the family is
routinely regarded as an organic whole held together by relationships of mutual reciprocity,
such that its members are expected to give the fulfilment of their obligations to other
members of the corporate whole priority over their personal interests. Moreover to the extent
that these patterns of reciprocity are ultimately grounded in the premises of patrilinearity,
marriage entails the transfer of a bride from one corporate whole (her natal family) to that of
another (her in-laws).
In this context marriage is never a matter of straightforward personal choice: rather it requires
the assent of all members of both families in the transfer, partly because all concerned have to
live with the consequences, one of the most significant of which is the establishment of a
rista (a relationship, or in other words a long-term set or reciprocities) between the two now
mutually-connected families. This, then, is the context within which arranged marriages - the
norm in South Asian contexts, no less in the UK than in the subcontinent - are routinely
brokered.
From this perspective the successful arrangement of such a marriage is a tricky business, if
only because so much is stake on all sides. Over and above the immediate issue of the
likelihood of the bride being able to establish a positive relationship with her in-laws as well
4
as her husband, care also has to be taken with respect to the likely impact of the rista on the
social standing of the two newly inter-connected families, no less in the long term that the
short. In these circumstances if a marriage should break down at an inter-personal level, the
fallout can all too easily have disastrous impact on the status of the bride's natal family, let
alone that of the bride herself.
Insofar as such a marriage is a significant investment, most particularly from the perspective
of the bride's family, no-one involved in arranging a marriage in this context has any interest
in in the arrangement failing, not least because the long-term grief associated with failure can
only be expected to outweigh any perceived short-term benefits. Moreover at least in
statistical terms, there is plentiful evidence that South Asian marriages display a substantially
level of stability than those contracted in terms of the contemporary cultural premises of the
UK's indigenous majority.
Nevertheless marital failure is an uncomfortable reality, regardless of the cultural context
within which the relationship has been constructed; and more often than not the consequences
for the wife are far more severe than they are for the husband. In South Asian contexts this
point holds in spades. Invariably identified as being to blame for the breakdown of the
marriage, ex-wives are routinely regarded inherently flawed, and hence as second-hand
goods; meanwhile their former husbands are all too often regarded as having a clean bill of
health, such that they can pick and choose the second time round. But if that is indeed the
case, why would any rational set of parents force their daughters into marriage against their
will, especially if the blow-back associated with marital failure is so disastrous?
The underlying logic of badly/myopically arranged marriages
In situations where parents play a key role in selecting potential spouses for their daughters,
they take on a considerable burden of responsibility: in the first place they need to make a
judgement as to whether the couple would be personally compatible with one another, and
just as importantly, where arrangement replaces courtship, parents need to undertake careful
homework to ensure that the goods on offer are as fine and upstanding as they are presented
as being. Whilst this can be a tricky task in the subcontinent, it is rendered all the more
challenging in the diaspora. There are two very obvious reasons for this. One the one hand
immigrant parents frequently underestimate just how far the attitudes and assumptions of
their offspring have been affected as a result of having grown up in the UK; secondly, and
just as importantly, they can all too often take offers of rista at face value, and as a result of
failing to do their homework with due diligence, despatch their offspring into marriages
which prove to be disastrous.
It is with precisely such considerations in mind that we are of view that 'forced marriage' is
in many respects a misnomer. Rather we would argue that the great majority of marriages
which attract this label are better understood as marriages which have been exceedingly badly
arranged by anxious and myopic parents, rather than as instances of cruel and deliberate
enforcement. If, however, we are to properly understand the circumstances in which these
egregious outcomes are most likely to occur, we also need to consider the prime source of
such myopic behaviour - a fear that their offspring are 'running off the rails'. To understand
the roots of such fears, we also need to pay close attention to the issue of just why it is that
5
South Asian parents display such intense concern with to their offspring's choice of marital
partner.
Parental concerns about the offspring 'running off the rails'
As far their families are concerned, virtually all members of the first generation of South
Asian settlers take the view that their they will only have fulfilled their parental obligations
once they have seen all their offspring settled in marriage, such that they are in the midst of
bringing up a new generation of grandchildren. But if they consequently feel that they cannot
feel fully relaxed until that condition is achieved, it also follows that they are often full of
apprehension until all their offspring, and especially their daughters have been suitably
settled - so much so that they frequently become acutely concerned about arranging a
suitable rista for them as soon as they have passed puberty. The roots of their concern are
quite straightforward: from South Asian cultural perspective, a young woman who falls
pregnant prior to marriage not only dishonours herself, but also casts a cloud of dishonour
over her entire extended family. If anything, such concerns have become yet more acute in
the diaspora than in South Asia itself On the one hand puberty tends to arrive several years
earlier than it did in the subcontinent, and on the other they find themselves in the midst of a
social order in which pre-marital sexual activity hardly raises an eyebrow. Hence ensuring
that their daughters protect themselves from disgrace becomes an even higher priority than it
was before.
But how was that to be achieved? The classic way of doing so was to arrange one's
daughter's marriage prior to puberty, cementing the relationship in place with a formal
ceremony of engagement, which could then be upgraded to a fully-fledged marriage once she
was old enough to take up her wifely duties. But although pre-puberty engagement has by
now gone out of fashion, no less in the subcontinent than the UK, such the engagement and
marriage ceremonies are often combined, and both are typically delayed until the bride has
completed her education, the underlying driving force behind early marriage is still firmly in
place - especially if there appears to be an imminent prospect of one's offspring, and
especially of one's daughters, going 'off the rails'.
With such fears in mind many parents are acutely concerned about the prospect of their
daughters removing themselves from immediate parental supervision by going off to
University at some distant location, and even if they continue to live at home, of them
establishing a surreptitious relationship with a boyfriend whom they might regard as
'unsuitable'. But as ever the basic rule in this context is 'thou shalt not be found out', or
failing that, to ensure that one's partner is someone whom one's parents could be persuaded
to regard as a suitable partner in an 'arranged marriage'. However it is when neither of those
strategies are available, and most especially when the family the family is under stress from
other directions that panic stations set in, such that an immediate marriage is arranged
regardless of the protests of the young women concerned: a forced marriage, no less. In other
words all my experience suggests that marriages of this kind only occur in exceptional
circumstances such that the parents of one or other of the spouses feels themselves to be at
their wits end.
6
In sum it follows that whilst myopically (and hence disastrously) arranged marriages in the
sense outlined above are not just a product of a specific set of cultural premises with respect
to kinship, marriage and family formation, but also of familial processes which have, in these
particular instances, themselves 'run off the rails', with disastrous consequences for the
offspring of deeply concerned, but seriously myopic parents looking for a quick solution to
their difficulties. In other words they are in no sense a normative outcome of the underlying
cultural premises of the communities to which they belong. Rather all our experience
suggests that such outcomes most likely to be precipitated when established processes of
dispute settlement have either been over-ridden or got out of hand, such that extreme - and
often highly inappropriate - measures are wheeled out in the face of a mistaken perception
which that instant marriage to an alternative partner is the only available means of holding
impending disaster at bay. Such ill thought out stop-gap measures rarely serve to stop the rot:
rather simply store up yet more problems for the future.
Given all this, it is in my it is in our view entirely appropriate that the UK authorities should
seek to explore the underlying issues in this sphere with some urgency, if only because badly
arranged marriages can all too easily become a major source of personal distress. However in
the light of these introductory remarks, we trust that it has become abundantly clear that the
underlying issues are far from straightforward, and that appropriate remedies are far from
easy to identify. What is equally clear is that the issues need to be approached with great
caution, if only because they arise in the context of a cultural arena whose underlying
premises with respect to kinship, marriage and family construction differ radically from those
around which the norms of the indigenous majority are currently constructed. Given all this,
all our experiences suggest that in the absence of a significant degree of cultural competence
and ethnosensitivity, interventions into South Asian family processes are much more likely
reinforce than to remedy disaster, no matter how well-meaning the objectives of ill-informed
interveners may have been.
A commentary on the issues as they are set out in the consultation document
The Secretary of State's perspective
Unfortunately the Secretary of State's Foreword to comprehensively overlooks these complex
issues. Rather she takes a moralistic stance to support the introduction of 'a hard-edged
deterrent' which will serve to 'stamp out this appalling abuse'. Four key points can readily be
extracted from the arguments which she sets out to justify her position:
1.
'Forced marriage' is a limitation on personal liberty of such severity as to be akin
slavery.
11.
No culture should find such practices acceptable.
111.
It is a form of violent abuse directed at both men and women, which the state has
every right to suppress.
rv. Likewise it has a duty to offer protection to those from in danger of being forced into
marriage against their will, and to provide effective support to those victimised in this
way.
7
The argument set out in the body of the document
Whilst the contents of the body of the document is a good deal less tendentious than the
Secretary of State's Foreword, it is hardly more successful in clarifying the nature of the
context within which, let alone precise reasons why, parents might wish to submit their
offspring to a Forced Marriage. Instead it deploys what can better be described as a scatterapproach.
Forced marriage is an appalling and indefensible practice that is recognised in the
UK and elsewhere as a form of violence against women and men, domestic abuse, a
serious abuse of human rights and, where a minor is involved, child abuse. Article 16
(2) of The Universal Declaration of Human Rights states clearly that 'Marriage shall
be entered into only with the free and full consent of the intending spouses.'
A forced marriage is a marriage in which one or both spouses do not (or, in the case
of some vulnerable adults, cannot) consent to the marriage but are coerced into it.
The coercion can include physical, psychological, financial, sexual and emotional
pressure. The types of behaviours engaged in by those forcing someone into a
marriage, however, cover a broad spectrum and generally present as a package of
behaviour, often over a period of time.
These behaviours range from emotional pressure, exerted by close family members
and the extended family, to more extreme cases, which can involve threatening
behaviour, abduction, false imprisonment, physical violence, rape and in some cases
murder (including so called 'honour' killings), many of which are crimes in their own
right. Victims of forced marriage can be both women and men, and may often include
children; and the marriages may take place in the UK or overseas.
The families involved may come from a variety of cultural and religious backgrounds.
Perpetrators usually comprise one or both parents or wider family members. It is
rarely one individual acting alone.
But despite having characterised forced marriage as 'an appalling and indefensible practice',
the text promptly goes on to note that
Due to its nature many victims do not realise that they are the victims of a human
rights abuse; many will never ask for help or will be prevented by their family (often
the perpetrators) from doing so. This makes it difficult to know the full extent of the
problem.
In our view this comment should be an immediate cause for alarm. How much sense does it
make to introduce legislation to criminalise an activity which is so little understood in which
the 'victims' of the activity in question are frequently unaware of their condition of
victimisation, so much so that it is difficult to establish the full extent of the problem?
Statistical evidence
To be sure the report does include a limited amount of statistical data, including an
observation that the Forced Marriage Unit
provided advice or support in 1618 cases, which rose to 1682 in 2009 and totalled
1735 in 2010. This has reflected the continued efforts of the Unit to raise awareness
8
among victims and potential victims that forced marriage is unacceptable and help
is available
However no systematic analysis has yet been made of the circumstances in which advice and
support was sought from the FMU, or how the cases in question were resolved, especially in
the light of the fact the FMU dealt with a much wider range of issues than those with which
this consultation is concerned. Other than that the only additional statistical data set out in the
document is an observation that a total of 339 FMPO order were issued between November
2008 and June 2011, a mean rate of just over 10 such orders per month. However once again
no data appears to be available with respect to the precise circumstances in which these were
issued, by whom they were instigated - and above all the extent to which the issue of the
order served to resolve the underlying problems which caused the order to be taken out in the
first place.
Could it be that for want of serious qualitative, and hence ethno-sensitive, investigations into
the underlying inter-personal and familial processes which give rise to problems in this area which we would readily acknowledge are real enough - the Home Office has been reduced to
playing a game of blind man's bluff?
Answers to the specific questions which respondents to the consultation have been
invited to address
1. Do you believe that the current civil remedies and criminal sanctions are being used
as effectively as they could be in tackling forced marriage? If not, what more do you
think can be done to prevent forced marriage including ensuring victims are not
deterred from reporting?
The first part of the question contains an underlying presumption that forced marriage can be
properly tackled through civil and criminal sanctions. In fact there is no empirical evidence to
suggest that this is the case; on the contrary there is wealth of socio-legal research on efforts
to use state law as an instrument for social reform which points to the opposite conclusion.
The question also raises a further fundamental problem that haunts the government policy on
this front: given that the extent of 'forced marriage' is unknown, the breadth of the definition,
and the practical impossibility of distinguishing it from arranged marriages (in which parental
intervention is the norm), there is no prospect of every being able to construct a measure of
whether or not an intervention has been 'effective' in tackling forced marriage.
Tackling forced marriage demands closer interaction with the communities involved.
2. Do you think a criminal offence should be created for the act of forcing someone to
marry against their will? If so, how do you think the offence should be defined?
This question has already been answered through three separate research consultations
commissioned by the government, each of which showed that the opinion of those working
most closely with these cases and in these communities saw that criminalisation would be as
expensive as they were needless. Since family members who resort to violence or kidnapping
in their efforts to force one of their offspring to marry against their will, Criminal law already
provides clear sanctions against such practices.
9
3. What issues should be considered to ensure that a new offence does not deter
people from reporting the crime?
As suggested above, there is a distinct lack of evidence-based research either with respect to
the identification of 'the problem', or with respect to the ways in which it might reasonably
be expected to be resolved, whether by legal or administrative means.
In terms of the government's objectives, it is by no means clear whether the Secretary of
State has punishment primarily in mind, since several of the questions suggest that one of the
government's most pressing concerns is to alter public opinion in such a way as to deter
parents contemplating forcing their offspring into unwelcome marriages, thereby making it
easier for professionals to 'tackle the problem.' However this raises yet another problem albeit one which is already present in the existing legislation: just what are the circumstances
in which it is expected that such a prosecution will be launched? Will it be restricted to
situations in which the unhappy spouse makes explicit complaint of having been subjected to
Forced Marriage, or will it be open to other professionals - such as social workers, feminist
activists and of course the Police to make a unilateral judgement that instigation of such a
prosecution is in order, regardless as to whether or not the unhappy spouse has reported her
parent's 'criminal' behaviour?
4. Do you think there should be an offence of luring someone abroad; luring someone
to this country or indeed within this country; or from one country to another for the
specific purpose of forcing them to marry?
The short answer is no. If anything the proposals and the emerging laws relating to forced
marriage are immensely confusing and complex. Many people do not understand the
technicalities of civil v criminal sanctions and the role of Protection Orders in this context.
It is worth noting that an actual criminal offence of forcing someone to marry was rejected in
the early days of the Forced Marriage Unit being established because criminal law already
caters well for the actions associated with an attempt at forced marriage. It is more
straightforward to treat kidnapping as kidnapping, physical violence as GBH or ABH and so
on.
5. How far do you think a person's circumstances and age influence their approach/
attitude in seeking protection/ justice?
This question can only be meaningfully addressed in the light of an awareness of
opportunities for active agency available in the specific cultural context in which the person
concerned routinely operates, rather than being restricted to structural issues of age and
circumstance. The government's approach to forced marriage is premised on a series of
presumptions which it has already set out in numerous policy papers, further reiterated in this
consultation paper, which put forward a negative and essentialised view of South Asian
cultural practices. In our opinion a much more richly and sympathetically informed
understanding of the conceptual cultural context, and above all of the dynamics of kinship
and marriage in South Asian-style extended families, is a necessary prerequisite for the
meaningful application of social policy in this sphere.
We would also observe that whilst the basic premises around which such families are
constructed give rise to substantially more salient gender hierarchies than those currently
10
articulated by members of the indigenous population, and that they display an equally
strong tendency to prioritise the collective interests of the group over that of its individual
members, the precise on which these premises are interpreted varies substantially by ethnicity
(Punjabi, Mirpuri, Pathan, Sylheti and so forth), by religion and sect, as well as by education
and social class. Whilst some families are consequently a great deal more tightly-knit than
others, we would also observe that close observation of their internal dynamics readily
reveals that in normal circumstances the premise of hierarchy rarely so overwhelming as to
entirely obliterate its more junior members' capacity to act as agents on their own account.
In the light of all this a 'forced marriage' as envisaged by the Home Office can more
accurately be identified as an example of a situation in which that capacity has for some
reason been reduced to something close to zero. However our experience suggests those who
find themselves 'grounded' in this way would prefer to find some way of increasing their
bargaining power within the extended family, without or without external assistance, as
opposed to being 'liberated' from it.
6. This question is grounded in the supposition that members of minority communities
can and should look to the social services, the police and the courts as a source of
protection and justice.
To the extent that current policies and practices invariably lead to prioritisation of the latter
strategy to the virtual exclusion of the former, our observations suggest that as a result of
bitter experience, most members of the minority communities have come to the conclusion
that social services and the police are much more interested in destroying the integrity of their
families, and hence the very foundations of their cultural tradition, rather than seeking to
facilitate the resolution of unwelcome contradictions which have exploded within them.
7. Do you think that the creation of a new criminal offence would make the law clearer?
The short answer is no. If anything the proposals and the emerging laws relating to forced
marriage are immensely confusing and complex. Many people do not understand the
technicalities of civil v criminal sanctions and the role of Protection Orders in this context.
It is worth noting that an actual criminal offence of forcing someone to marry was rejected in
the early days of the Forced Marriage Unit being established because criminal law already
caters well for the actions associated with an attempt at forced marriage. It is more
straightforward to treat kidnapping as kidnapping, physical violence as GBH or ABH and so
on.
8. Do you think the creation of a new criminal offence would make it easier for
professionals to tackle the problem?
The short answer is yes, at least in the sense that it would provide professionals with a further
weapon with which to tackle 'the problem'. But it would also allow modernistically minded
crusaders for unlimited personal freedom to view the initiative as the first step towards the
elimination of the 'harmful traditional premises' in terms of which most members of Britain's
South Asian families continue to organise their domestic affairs.
9. Do you think that criminalising forcing someone to marry would change public opinion
towards forced marriage, particularly in those communities most affected?
11
The question identifies a need to engage public opinion within those communities most
affected, and indeed this is of critical importance. However criminalisation is in no sense an
appropriate vehicle for so doing, and can often precipitate the inverse of the desired result.
What is required is the opening up of dialogue which actively facilitates cross-cultural
communication, which can in tum only be achieved on the basis of mutual respect, such that
the dialogue is genuinely two-way. Criminalisation does not meet this requirement: rather it
demonises alterity, and in doing so conflates outcomes which are unwelcome for all
concerned with cultural inferiority.
Conclusion
Given the ill-informed, and hence the scatter-gun character of the arguments presented in the
current consultation document, any initiative based on its premises would in our opinion be
widely perceived as part of an unilateral effort to undermine the integrity of the new
minorities' cultural traditions, in favour of the adoption of individualistically oriented (and
hence 'superior') Euro-American premises and practices. Experience suggests programs of
social engineering conceived on such a unilateral basis regularly fail.
The marriage lies at the heart of family life, an institution which is as valuable as it is fragile.
It follows that the relationships of mutuality and reciprocity which lie at the heart of family
life are a public good, and deserve active support from public policy. By the same token
when relationships within such arenas become rent with contradictions, it is equally in the
public interest to ensure that active steps should be taken to facilitate their equitable
resolution, most especially in the case of communities whose members have a long-standing
and deeply-rooted commitment to resolving their underlying differences on this basis - as is
the case in all the strongly networked communities in which marriages are the normatively
presented as 'arranged', and consequently require parental assent.
Hence in our view policy initiatives in this sphere would be much better at directed
supporting efforts to resolve intra-familial contradictions on the basis of 'traditional'
processes renegotiation, and where appropriate providing the unhappy victims of ill-judged
familial initiatives with an enhanced degree of bargaining power, rather than hanging back
until no other option remains but a criminal prosecution. Experience shows that such
sledgehammer interventions are most unlikely to precipitate any kind of familial remedy:
instead it is much more likely to smash the remnants of the relationships of mutual
reciprocity which once underpinned its collective existence to smithereens, leaving the
unfortunate victim in an even more exposed to exploitation than she was in the first place.
Dr Roger Ballard
Dr Fauzia Shariff
Director
Centre for Applied South Asian Studies
Red Croft
Howard Street
STALYBRIDGE SKIS 3ER
Joint Director, BA Anthropology and Law
Law Department
London School of Economics
Houghton Street
London WC2A 2AE
12
ROGER BALLARD
CV
Contact Address: Red Croft, Howard Street, Stalybridge, SK15 3 ER
Phone/Fax0161-303-1709 Mobile 07843 748 298
email [email protected] URL www.casas.org.uk
1.
Qualifications
1966 B.A. in Social Anthropology, University of Cambridge
1970 Ph.D. in Sociology, University of Delhi.
2.
Membership of Professional Bodies
Fellow of the Royal Anthropological Institute
Member, Association of Social Anthropologists
Member, Register of Expert Witnesses
3.
Appointments
2002 1989 - 2002
1975 - 1989
1971 - 1975
4.
Director, Centre for Applied South Asian Studies, University of Manchester
Senior Lecturer in Comparative Religion, University of Manchester
Lecturer in Race Relations, University of Leeds.
Research Associate, SSRC Research Unit on Ethnic Relations, University of Bristol.
Fieldwork Experience
India (District Jullundur):
Pakistan (District Mirpur)
Bangladesh (District Sylhet)
UK
5.
1967-69 (18 months), 1972-73 (6 months), 1981 (6 weeks), 2000 (3
weeks)
1981 (6 weeks), 1984-85 (12 months), 2000 (3 weeks), 2009 (1
week)
2003 (1 week)
Continuous contact (although of varying intensity) with Punjabi
communities throughout the Pennine region during the course of the
past 30 years
Languages spoken
Punjabi, Urdu
6.
2003
2003
1999
7.
Recent consultancies
The Current Demographic Characteristics of the South Asian Presence in Britain: an
analysis of the results of the 2001 Census Foreign and Commonwealth Office
The economic impact of migrant remittances Department for International
Development
Equal Treatment Advisory Committee, Judicial Studies Board (to contribute to second
edition of the JSB's Equal Treatment Benchbook).
Professional activities
In 2003 I took early retirement from my teaching post in the University of Manchester in order to
service an ever-growing number instructions to act as a Consultant Anthropologist. In doing so I have
accepted instructions from a variety of central and local government agencies, but the mainstay of my
business has turned out to be the preparation of expert reports for use in legal proceedings in which
members of Britain's South Asian minorities have found themselves caught up, and in which social,
cultural, linguistic, familial and religious issues are in some way at issue. I have now prepared over
500 reports for use in the criminal, civil, immigration, family and administrative courts. Much (although
by no means all) of the material in my current academic publications is now drawn from my
experience of acting as an expert witness.
13
8. Selected Relevant Publications
2011
"Honour Killing? Or just plain homicide?" in Holden, Livia (ed) Talking Expert: Patterns of
Litigation and Expert Witnessing in South Asian Diasporas Aldgate
2011
"The Re-establishment of Meaning and Purpose: Madri and Padre Muzhub in the Punjabi
Diaspora" in Olwig, Karen (ed) Mobile Bodies, Mobile Cosmologies: Family, religion, and
migration in a global world? University of Copenhagen Press
2009
"The Dynamics of Translocal and Transjurisdictional Networks: A Diasporic Perspective" in
South Asian Diaspora Vol1, (2) 141 -166
2009
"Human Rights in Contexts of Ethnic Plurality: Always a Vehicle for Liberation?* in Grillo,
Ballard, Ferrari, J. Hoekema, and Shah (eds) Legal Practice and Cultural Diversity Aldgate
299 - 330.
2008
"Minority professionals' experience of marginalisation and exclusion: the rules of ethnic
engagement" in Eade, John (ed) Advancing Multiculturalism, Post 717 Cambridge: The
Scholar's Press pp 73 - 96.
2008
"Inside and Outside: Contrasting perspectives on the dynamics of kinship and marriage in
contemporary South Asian transnational networks" in Grillo, R. (ed) The Family in Question:
Immigrants and Minorities in Multicultural Europe University of Amsterdam Press p. 37 - 70.
2007
"Common Law and Common Sense: Juries, Justice and the Challenge of Ethnic Plurality" in
Shah, P. (ed) Socio-Legal Perspectives on Ethnic Plurality. Leiden: Martinus Nijhoff. p. 69 106.
2007
"Living with Difference: a forgotten art in urgent need of revival?" in Hinnells, J.R. (ed)
Religious Reconstruction
in the South Asian Diasporas: From one generation to another''
London: Palgrave Macmillan p. 265 - 301
2006
"Forced Marriage: A Criminal Conspiracy?" in N. Schlenzka (ed) Female Marriage Migrants:
Awareness Raising and Violence Prevention. Berlin: Edition Parabolis 167-180
2006
"Popular Islam in Northern Pakistan and its Reconstruction in Urban Britain" in Hinnells and
Malik (eds.) Sufism in the West London: Routledge p. 160 - 186.
2006
"Ethnic diversity and the delivery of justice: the challenge of plurality" in Shah, Prakash (ed)
Migrations, Diasporas and Legal Systems in Europe London: Routledge Cavendish p. 29 - 56
2005
"Migration, Remittances, Economic Growth and Poverty Reduction: reflections on some South
Asian developments" in Siddiqui, Tasneem (ed) Migration and Development: Pro-poor policy
choices Dhaka: The University Press p. 333 - 358
2005
"Coalitions of Reciprocity and the Maintenance of Financial Integrity within Informal Value
Transmission Systems: the operational dynamics of contemporary hawala networks" in
Journal of Banking Regulation Volume 6, 4 pages 319 - 352
2003
"The South Asian Presence in Britain and its Transnational Connections" in Singh, H. and
Vertovec, S. (eds) Culture and Economy in the Indian Diaspora, London: Routledge Pages
197 - 222
1999
"Communication" and "Ethnic Minority Families", in Equal Treatment Benchbook London,
Judicial Studies Board, pp. 87 - 98, and 99 - 115.
1996
"The Pakistanis: Stability and Introspection", in Peach, C. (ed.) The Ethnic Minority
Populations of Great Britain: Ethnicity in the 1991 Census, Vol. 2 London: Central Statistical
Office, pp. 121 - 149
1994
Desh Pardesh: The South Asian Presence in Britain. London: C. Hurst and Co., and
Vancouver: University of British Columbia Press, pp. 297.
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1990
"Migration and Kinship: the differential effect of marriage rules on the process of Punjabi
migration to Britain", in Clarke, C. Peach, C. and Vertovek, S. (eds.), South Asians Overseas:
Contexts and Communities, Cambridge: Cambridge University Press pp. 219 - 249
1982
"South Asian Families: Structure and Process", in Rapaport, R. Fogarty, M. and Rapaport, R,
(eds), Families in Britain, London: Routledge. pp. 179 - 204
Fauzia Shariff
Fauzia Shariff joined the Law department at LSE in 2008 where she is the Joint Director of
the BA in Anthropology and Law. Before joining the LSE she was awarded an ESRC
Postdoctoral Research Fellowship at the School of Oriental and African Studies (SOAS,
London) where she was also visiting lecturer on the LLM program: International Protection of
Human Rights. Fauzia studied law at the University Kent (LLB) and SOAS (LLM) and
received a scholarship from the ESRC to complete her Phd, on power and law in ethnic tribal
society, at the University of Warwick, which she was awarded in 2006. Prior to this she
worked as a specialist advisor in the UK government. In 2005-06 she acted as assistant to
the Head of Profession for Governance at the Department for International Development
(DFID) before joining the Social Protection Team as governance advisor. Before starting her
Phd she was seconded to the Foreign and Commonwealth Office (FCO) from INTERIGHTS
(International Centre for the Protection of Human Rights) to set up a dedicated forced
marriage desk, working with Ministers, foreign governments and NGOs to improve
government assistance to British citizens facing forced marriage abroad. Prior to this she
worked with a senior lawyer to establish a legal research unit at the Immigration Appellate
Authority. She has also worked as a research consultant for Centre on Migration, Policy and
Society (COMPAS, University of Oxford) and local government. She has commissioned and
edited a number of government papers and research papers and has delivered papers
internationally including giving a Memorial Lecture in 2004 at the Anthropological Survey of
India, Kolkata.
Research interests
Legal pluralism within the nation state, rights of minorities and importance of power relations
in access to justice issues, rights of indigenous and ethnic tribal peoples, governance
aspects of development, forced marriage.